Abbott Districts are the product of approximately thirty
years of extensive and controversial dialogue, litigation, and thirteen
decisions of the New Jersey Supreme Court. In Abbott II, the Court found
that the school funding formula was unconstitutional as to poorer urban
districts. The Court identified those districts that appeared to qualify
as "poorer urban districts," but ultimately left it to the
Legislature, the State Board and the Commissioner to make that determination.
After the Courts decision in Abbott II, the Legislature enacted
the Quality Education Act (QEA). The Legislature defined those districts
entitled to the Courts Abbott remedy as the 28 districts identified
by the Court and two additional districts, Neptune and Plainfield. In
Abbott III, the Court found that the remedy provided by QEA was constitutionally
deficient. The Legislature subsequently enacted the Comprehensive Educational
Improvement and Financing Act (CEIFA) and identified those districts
entitled to Abbott remedies as the original 28 Court-identified districts.
Although CEIFA was found to be unconstitutional as applied to the Abbott
Districts in Abbott IV, the Court did not invalidate limiting the group
of districts to the original 28 identified by the Court. The Court noted,
however, that a district could challenge its classification before the
Commissioner (Abbott IV, page 200 fn37.). CEIFA was later amended to
add both Plainfield and Neptune to the definition of an Abbott District. N.J.S.A. 18A:7F-3.
Most recently, in the Educational Facilities Construction and Financing
Act (EFCFA), the Commissioner was directed to make recommendations to
the Legislature of criteria to be used in the designation of districts
as Abbott Districts. N.J.S.A.18A:7G-4(k). The purpose of this
paper is to make those recommendations consistent with the intent and
spirit of the Abbott decisions and the legislative guidance provided.

There are three themes captured in the voluminous record
of the Abbott decisions that provide the basis for the designation, classification,
and declassification of Abbott Districts. Moreover, the decisions are
clear and specific that it is the Commissioner of Education who is charged,
in consultation with the appropriate bodies, to develop and update criteria
for Abbott designation that retain and strengthen the Courts themes
for answering the question "What is an Abbott District?"

For the last three decades urban public education policy
in New Jersey has been largely defined through judicial determination.
The landmark decisions in Robinson v. Cahill and Abbott v.
Burke reflect a consistent judicial posture "that the urban
poor are capable, that given sufficient attention in an adequately financed
system using the best knowledge and techniques available, a thorough
and efficient education is achievable." (Abbott II, page 394) The
cases continuously direct the State to do more and to do better in providing
the "thorough and efficient" education mandated by New Jersey's
Constitution to poor urban children.

The New Jersey Supreme Court in Abbott II first designated "Abbott
Districts" with criteria and a list of districts that were identified
by the Commissioner of Education as poorer urban districts. It
left it to "the Legislature, the State Board of Education and the
Commissioner to determine prospectively which districts are poorer urban
districts." (Abbott II, page 385)

Abbott is not about relative educational disparities
alone. Instead, the decisions concern those districts in which both poverty
and educational inadequacy are so substantial that they cannot possibly
satisfy the standard absent implementation of the Abbott remedies that "poorer
disadvantaged students must be given a chance to compete with relatively
advantaged students." (Robinson v. Cahill I, pgpage 515)

The factual record included only the comparative data
from poor urban districts. The Court implies that older suburban and
rural communities with similar characteristics might also be eligible
for Abbott designation. While this possibility cannot be dismissed, it
is overwhelmingly probable that the conditions for Abbott designation
will be primarily urban. High concentrations of poverty, significant
mobility, and the other characteristics of poverty are much more likely
to be found in urban centers. The needs of poor rural and older suburban
poor communities certainly exist and may require additional remedies,
but Abbott designation should not be the only recourse available or possible.

B. Two-Part Test for Designation

In order to be eligible for an initial Abbott designation
and remedies, a school district must be characterized by both low student
achievement and concentrated poverty. Both Abbott II (page 385) and Abbott
VII, as well as legislation (N.J.S.A.18A:7G-4), give the Commissioner
the responsibility to determine those districts to include or, as will
be discussed, to remove from Abbott status.

1. Educational Adequacy

The Commissioner of Education, the Department of Education
and the State Board of Education must insure that students receive a
thorough and efficient education. The means by which they determine which
school districts satisfy this requirement is the State Monitoring System.
Educational adequacy must be determined within the context of the Core
Curriculum Content Standards (CCCS). (Abbott N, pgpgpages 161-162)
Each district must offer a program that gives students the opportunity
to master the Content Standards. In Abbott II, the Court notes certain
factors that could be indicative of educational adequacy. These factors
include:

variety of course offerings;

facilities;

instructors' education and experience;

teacher/pupil ratios;

statewide test scores; and

drop out rate.

The Court does not suggest that any one of the above
standards is determinative. Acceptable performance emerges in a balance
of the State Monitoring System standards. As a result of the enactment
of the Educational Facilities Construction and Finance Act (2000) and
the States pledge to fund at least 40 percent of school facilities
costs in all districts, the Department has excluded facilities as a criterion.
%

Test scores must be considered within the context of
the district's ability to attain "adequate yearly progress" as
required by the "No Child Left Behind. (NCLB)" legislation.
This federal measure focuses on educational improvement over time as
assessed annually and not on a level of educational competency. Perhaps
more importantly, NCLB forces districts to include the performance of
Special Education, Limited English Proficiency, and racial and ethnic
minorities as subsets. The failure of any one group to improve can result
in the designation as a "School Needing Improvement." Additional
factors not specifically referenced by the Court, but appropriate for
consideration are school safety and the ability of all students at Grade
3 to read at grade level. Therefore, to determine educational adequacy
the following factors will be considered:

statutory monitoring results;

variety of course offerings;

teacher qualifications and experience;

teacher/pupil ratios;

drop out rates;

ability of Grade 3 students to read at grade level; and

statewide test scores.

Going forward, the development of the statewide student-level
database will produce much more rigorous and credible data for making
such judgments. Concentrated poverty districts in which students are
consistently attaining acceptable achievement may not be designated an
Abbott District, though their ability to offer a sound educational program
in the face of substantial obstacles should be celebrated and shared
with other districts.

2. Concentrations of Poverty-Economic Indicators

The socioeconomic status for the 28 (now 30) districts
included in CEIFA (N.J.S.A. 18A:7F-3) as Abbott Districts is determined
in large part by District Factor Grouping (DFG). The Department of Education
devised this system in 1974 to rank every district in the state by seven
factors: 1) per capita income level; 2) occupation level; 3) education
level; 4) percent of residents below the federal poverty level; 5) density
(the average number of persons per household); 6) urbanization (percent
of district considered urban); and 7) unemployment (percent of those
in the work force who received some unemployment compensation). (Abbott
II, page 385)

The DFG model was revised following the 1990 census,
as follows: 1) Percent of population with no high school diploma; 2) Percent
with some college; 3) Occupation; 4) Population density; 5) Income; 6)
Unemployment, and 7) Poverty. Most Abbott Districts are found in DFG
A, with a few in DFG B , and two in DFG C. Not all DFG A districts are
Abbotts.

, Additional criteria for urban districts derive
from those districts originally identified as "urban aid districts" by
the Department of Community Affairs pursuant to N.J .S.A.52:27D-178
to 181 and now included as New Jersey Redevelopment Authority "eligible
municipalities."1 To qualify as an
urban aid district, the municipality must be of a certain size or density,
have a certain number of children whose families are on welfare, have
public housing, and a higher tax rate or lower property valuation per
capita. (Abbott II, pagepagepages 341-342)

Municipal overburden, which can be determined by comparing
the sum of the county and municipal tax rates among the school districts,
must also be considered. (Abbott II, page 343) In the Educational Facilities
and Financing Act, the Legislature provided additional guidance in determining
socioeconomic status for new or continuing Abbott Districts. N.J.S.A.18A:7G-4.

The criteria may include, but not be limited to: the
number of residents per 1,000 within the municipality or municipalities
in which the district is situate who receive TANF; the district's equalized
valuation per resident pupil...the district's income per resident pupil...the
population per square mile of the municipality or municipalities in
which the district is situate; and the municipal overburden.

Given this context and its own analysis, the Department of Education
adopts the following economic indicators to guide Abbott classification.

The district must be DFG A and satisfy the following
criteria. DFG B districts that also meet the following criteria may be
classified as Abbott if they demonstrate additional substantial economic
hardship:

The district must have a low-income concentration
(as measured by eligibility for free lunch under the United States
Department of Agriculture free/reduced lunch program) of at least
40 percent;

If the district has a low-income concentration less
than 60 percent, then it must have an equalized value per capita
at least 3 percent below the state average and equalized tax rate
at least 30 percent greater than the state average;

If the low-income concentration is at least 60 percent,
then the equalized value per capita must be at least 3 percent below
the state average; the equalized tax rate does not factor into the
eligibility requirement for these districts; and

The district must be included in the NJRA eligible
list.

C. A Remedy Not a Reward

A remedy in the strictest sense of the word provides
a response to correct, to improve and/or to change a condition in favorable
or desirable ways. In terms of Abbott designation, the remedies as defined
broadly and specifically are similarly intended to improve student achievement
through the application of resources and the support that the community,
because of economic conditions, is unable to provide. It is under those
circumstances that the Abbott decision requires that additional state
aid and remedies must be provided.

If the Abbott remedies are properly implemented, they
may produce such an improvement in student performance that the districts
Abbott status might be eliminated or reduced in scope. In combination
with changing economic conditions, this possibility might fundamentally
change the districts status. However, when durable and concentrated
poverty are combined with significant educational improvement, the presumption
is that Abbott status will be maintained. This shall occur almost exclusively
in District Factor A Abbott School Districts.

Change in status requires a systematic and timely review
of current Abbott Districts and of prospective Abbott Districts so that
a determination consistent with the intent and spirit of Abbott can be
made. Such a review will occur after the decennial census; although prospective
districts could petition the Commissioner for such designation (and appeal
through the Courts if denied). There may be circumstances where the Commissioner
independently determines that students in a particular district require
the full array of Abbott remedies. In the instance where a district applies
for Abbott designation, a thorough and promulgated review process must
be established. In all cases, both the relevant educational and economic
criteria must apply.

Abbott designation carries with it the obligation to
implement specific court-ordered remedies. Prospectively, one could classify
any district eligible for any state-supported remedy as Abbott regardless
of the range of special services. It is preferable to limit Abbott designation
to districts that qualify for most, if not all, Abbott remedies. Presently,
only districts in DFG A and B and the two DFG C districts qualifying
for urban aid with concentrations of poverty have been designated Abbotts.
Other districts which may be determined by the Commissioner to be in
need of additional remedies but not the full panoply of Abbott remedies,
would be designated as non-Abbotts. Remedies may include full day Early
Childhood programs for four-year-olds and/or 100 percent reimbursement
for Facilities improvement or other appropriate remedies. The redesign
of a modified school formula should provide for the "sliding scale" approach
for needy, non-Abbotts. This approach would be district focused and certainly
preferable to the expansion of broad brush Abbott designation.

Particular attention should be given to K-8 districts
requiring additional resources. They do not fit into the Abbott model
which are all PK-12 districts. Additionally, high poverty rural districts
may require additional resources to deal with issues of high student
mobility and their inability to attract highly qualified teachers. In
those districts, full school day preschool (six hours) for four-year-olds
and half school day preschool for three-year-olds, some other preschool
model, and/or early literacy programs may be appropriate. Additionally,
for those districts not providing programs beyond the fifth or eighth
grade, there must be effective articulation between the lower schools
and the districts into which they feed. Those districts the Commissioner
determines to fit into this category will be asked to develop a three-year
plan to integrate into their curriculum preschool and other programs
determined to be required into their curriculum. By 2008 it is anticipated
that preschool will be in place for all eligible children in those districts.
The Commissioner will recommend that the State provide the additional
funds each district will need to implement these programs.

II. Process

Based on the above economic, urban and educational indicators
set forth above, districts that meet the Abbott criteria, but have not
been designated as such, will be phased in as Abbott Districts over time.
The first year will be a planning year in which the district will receive
the funds necessary to undertake a comprehensive needs assessment and
develop a three-year operational plan for each school and for the central
office. The first three-year operational plans should focus on two specific
programs  high quality preschool and intensive early literacy.
This planning year should include substantial professional development
to prepare for the programmatic changes that are identified in the three-year
operational plans. Future three-year operational plans will include other
initiatives to address issues in the district that are preventing students
from achieving the CCCS. Increased State funds will be provided, as needed,
to support the activities identified in the approved three-year plans.

Districts that do not meet the Abbott criteria, but
may be eligible for "sliding scale remedies," shall be required
to demonstrate financial inability to provide such remedies and to demonstrate
educational inadequacies relative to those needs. Those districts will
also be required to develop an implementation plan. The timing and details
of the plan shall be tailored to specific district needs.

The decennial census may validate that some Abbott Districts
no longer satisfy Abbotts economic requirements. After each census,
the Commissioner shall document those Abbott Districts, if any, that
no longer satisfy the criteria for concentrated poverty. An exit plan
will be devised for each no longer qualifying district to permit an orderly
financial and educational transition. Funding, for example, might be
phased out over four years. These districts will continue to receive
100% percent facilities funding for all projects in the design or construction
phase. Districts will be able to make application for adjustment based
on hardship.

We should not remove from Abbott status those District
Factor A districts that continue to qualify as high-poverty even if their
students consistently achieve at acceptable levels. These high performing
Abbott Districts reflect a local leadership and commitment essential
to quality outcomes, and not enough time has elapsed to make sure the
improved educational process has been institutionalized. It is reasonable
that these DFGA districts with high concentrations of poor children require
more time and analysis to determine if their success will continue without
the Abbott remedies. Therefore, they must, at this time, remain designated
as Abbotts.

Conclusion

The responsibility to insure that all New Jersey public
school students receive a thorough and efficient education rests with
the Commissioner, the Department of Education and the State Board, not
with the Courts. While the New Jersey Supreme Court, through Abbott, has
provided a framework to assure compliance with that mandate in the 30
Abbott Districts, that framework establishes certain remedies. The framework
does not implement the remedies or represent that a different set of
remedies may not be more appropriate under certain conditions or, that
as economic conditions change, the remedies cannot change. This paper
offers a blueprint for next steps for children in districts challenged
by insufficient resources and unable to offer a fully adequate education.
Now Abbott Districts will be regularly reviewed both for economic need
and educational offerings, and other districts in need will have appropriate
remedies available.